Page:Harvard Law Review Volume 12.djvu/474

454 which equally leave the doctrine a survival, the reasons for which long have disappeared.

In Brower v. Fisher, the defendant, a deaf and dumb person, had conveyed to the plaintiff real and personal property, and had got a judgment against the plaintiff for the price. The plaintiff brought a bill to find out whether the conveyance was legal, and got an injunction pendente lite to stay execution on the judgment. On the plaintiff's petition a commission of lunacy was issued to inquire whether the defendant was compos mentis. It was found that he was so unless the fact that he was born deaf and dumb made him otherwise. Thereupon Chancellor Kent dismissed the bill but held the inquiry so reasonable that he imposed no costs. The old books of England fully justified his view; and why? History again gives us the true reason. The Roman law held very properly that the dumb, and by extension the deaf, could not make the contract called stipulatio because the essence of that contract was a formal question and answer which the dumb could not utter and the deaf could not hear. Bracton copies the Roman law and repeats the true reason, that they could not express assent, consentire; but shows that he had missed the meaning of stipulari by suggesting that perhaps it might be done by gestures or writing. Fleta copied Bracton, but seemed to think that the trouble was inability to bring the consenting mind, and whereas the Roman law explained that the rule did not apply to one who was only hard of hearing—qui tardius exaudit—Fleta seems to have supposed that this pointed to a difference between a man born deaf and dumb and one who became so later in life. In Perkins's "Profitable Book," this is improved upon by requiring that the man should be born blind, deaf, and dumb, and then the reason is developed that "a man that is born blind, deaf, and dumb can have no understanding, so that he cannot make a gift or a grant." In a case before Vice-Chancellor Wood good sense prevailed, and it was laid down that there is no exception to the presumption of sanity in the case of a deaf and dumb person.

Other cases of what I have called inflated and unreal explanations, which collapse at the touch of history, are the liability of a master for the torts of his servant in the course of his employment, to which I have referred earlier, and which thus far never, in my